LAKE VS. LAKE (DIVORCE PROPERTY & ALIMONY)

Key holdings

Practitioner summary

Defendant husband's appeal from a post-decree district court order requiring him to pay plaintiff wife's attorney $600 for services in further proceedings on the property branch of the divorce suit (the decree had dissolved the marriage and awarded plaintiff custody, but adjudged the claimed community estate to be the husband's separate property); heard together with plaintiff's motion in the supreme court for a further $200 counsel fee, admitted reasonable, for the appeal. Belknap, J., affirmed and allowed the motion. Service of the notice of hearing on the party rather than his attorney of record violated Comp. L. sec. 1561 (civil practice act sec. 500), which regulates the 'due notice' required by the 1865 amendment to the marriage and divorce act (Comp. L. sec. 220), and the district court's contrary ruling was technically erroneous - but harmless, the defendant having appeared by counsel and declared himself prepared to proceed. On the merits, sec. 220's authorization to require the husband 'at any time after the filing of the complaint' to pay sums necessary to enable the wife to carry on or defend the suit is affirmatory of the common law, under which allowances are made from time to time as circumstances require (Graves v. Cole, 19 Pa. St. 173; Forrest v. Forrest, 5 Bosw. 672): a prior fixed allowance does not exhaust the power. Nor was the post-decree allowance to further prosecute a branch decided against the wife an abuse of discretion or beyond the court's authority - she is entitled to proper allowances so long as the cause is pending and until finally determined (Jenkins v. Jenkins, 91 Ill. 167; Phillips v. Phillips, 27 Wis. 252; Goldsmith v. Goldsmith, 6 Mich. 286), and the further proceedings appeared contemplated in good faith, not vexatiously. Finally, though no statute authorizes fee allowances in the supreme court, divorce jurisdiction carries by implication the incidental power to make them, a power indispensable to guarding the rights of wives. Order affirmed; respondent's motion allowed.

In plain language

In the Lake divorce suit, the district court granted the wife a divorce and custody of the couple's child, but decided that a large estate she claimed as community property was the husband's separate property. Wanting to pursue that property fight further but having no money, she obtained a district court order requiring the husband to pay her attorney a $600 fee for the further proceedings. The husband appealed from that order, and the wife asked the supreme court for an additional $200 counsel fee - conceded to be reasonable - for defending the appeal. The Nevada Supreme Court affirmed the $600 order and granted the wife's motion. It held that the notice of the fee application should have been served on the husband's attorney rather than on the husband personally, but the error was harmless because the notice accomplished its purpose - the husband appeared through counsel and said he was ready to proceed. It held that courts may make successive counsel-fee allowances as the changing circumstances of a case demand: the statute lets the court at any time after the complaint require the husband to pay sums necessary to enable the wife to carry on or defend the suit, and a destitute wife remains entitled to proper allowances as long as the case is pending, even after a decree and even to pursue a branch of the case she has so far lost. Finally, although no statute authorizes fee allowances in the supreme court itself, the power to make them is implied as incidental to divorce jurisdiction and indispensable to guarding the rights of wives.